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By John Helmer, Moscow

There has never been any possibility that Russian Army Colonel Sergei Muchkaev, commander of the 53rd Anti-Aircraft Missile Brigade of the 20th Guards Army, would respond to allegations by Bellingcat, their NATO sources, and Dutch state prosecutors. No possibility whatsoever.

For more than five years they have been claiming that Muchkaev had given the orders to move a BUK-TELAR missile battery from the brigade base in Kursk across the border into Ukraine in July 2014, and there to shoot down Malaysia Airlines Flight MH17 on July 17 of that year.  

No army in the world, least of all the NATO armies in their war preparations against the Russian Army, would allow a fishing expedition by a secret judge and his military intelligence helpers to interrogate a serving officer for information about the command, control, communications, and operational orders of his unit. But that is exactly what the Dutch judge presiding at the MH17 trial, Hendrik Steenhuis, and the investigating judge assisting him in secret, have been attempting for several months. Last month, on November 2, Steenhuis ordered the trial to be delayed until next February while Muchkaev was pursued by the Dutchmen.   

This past Wednesday, December 8, Steenhuis announced in court what he and his government superiors had been expecting. In a letter apparently dated December 3, the Russian authorities reportedly said they would not allow questioning of Muchkaev. Steenhuis said the Russian letter claimed as its legal authority the European Convention for Mutual Assistance in Criminal Matters – a treaty both the Dutch and Russian governments have ratified.

Steenhuis did not quote the Russian government letter. Instead, he claimed he was reporting what he had been told by the secret investigating judge who had received the Russian letter last week.  According to Steenhuis, he was told the Russian Justice Ministry had said that “pursuant to the European Convention for Mutual Assistance in Criminal Matters such a request [for Muchkaev to be questioned] can be rejected if the requested party, in this case the Russian Federation, is of the opinion that execution of the request may harm the essential interests of the country.”   — Min 10:38.

Steenhuis went on to claim he had been told by the investigating judge that the letter from Moscow claimed “the questions in the [Dutch] documents [plural] received which were going to be asked of the witness Muchkaev” involved classified military matters, disclosure of which is prohibited by Russian law.  Accordingly, Steenhuis claimed the Russian letter claimed the questioning “may cause damage to state secrets of the Russian Federation, and consequently to essential interests of the Russian Federation. In view of the above” – Steenhuis talking – the Justice Ministry refused to send the Dutch request to a Russian court to order Muchkaev to testify. “This was the reaction of the Russian Federation” – Min 11:19.

But was it? That’s to say, was Steenhuis quoting from the exact words of the Russian letter, and was he quoting all of them?

In his brief announcement, Steenhuis has made it appear the Russia government won’t allow their officer to testify because of a single provision in the Mutual Assistance Convention behind which the Russians are hiding what the Dutch have already accused Muchkaev of doing. Not only has Steenhuis  used the court to announce the innuendo that Muchkaev is guilty of the shoot-down of MH17. Steenhuis has also implied there was only one provision in the Convention identified in the Russian letter, and that’s the guilty secret one.

In fact, the Convention provides several quite different provisions for the Russian refusal – one of which blocks evidence fishing expeditions; another which blocks attempts to pursue politically motivated allegations and show-trial prosecutions; and yet another which exempts serving soldiers.

 Listen carefully to Steenhuis turning his hearsay of the Russian letter of December 3 into innuendo of Muchkaev’s culpability.  

Left: Judge Steenhuis reads from his December 8 court statement on Muchkaev.
Right: Colonel Muchkaev, the second longest serving commander of the 53rd Brigade in the unit’s history. The first allegations against Muchkaev’s brigade appeared in September 2016 from Bellingcat and the related German propaganda unit, CORRECT!V. 

In the formal letter of request for Russian consent to the Muchkaev proceeding, apparently dated last month, the Dutch prosecutors and investigators said they were relying on the Mutual Assistance Convention. This treaty was first agreed in 1959. The Dutch ratified it in 1965 with the express reservation that it would refuse an assistance request if the alleged crime was, in the Dutch interpretation, a politically motivated prosecution by the requesting state.   Russia ratified the treaty in 1999, adding a more explicit definition of crimes, including war crimes, attacks on civil aircraft and hostage-taking which are not “political offences”.   

International and Dutch lawyers comment that in the text of the Convention there are several grounds for the Russian refusal to allow the Dutch attempt at questioning Muchkaev: they identify four in particular, Article 1(2); Article 2(a) and (b); and Article 5.  Articles 8, 11 and 12 have also been cited  by Alfred Vierling, a Dutch specialist on international law and Dutch war crimes.  


Source: https://rm.coe.int/16800656ce 

Canadian war crimes lawyer Christopher Black agrees there are several provisions in the Convention which justify the Russian refusal to allow Muchkaev to be questioned by the Dutch. “It is difficult to assess their decision without their point of view.  There could be a very good reason they have refused – but will we even know?”

The Russian Foreign Ministry was asked to clarify “the exact wording of the Russian letter of refusal, or the public release of the official letter since the Dutch have referred to it in public and given their interpretation of its contents.” Spokesman Maria Zakharova has not yet replied.  

The Moscow law firm Kovler & Partners was asked the same questions. Founded by Anatoly Kovler, a former judge of the European Court of Human Rights, the firm is run by his son Oleg and pays for the Dutch defence lawyers in their conduct of the trial proceedings against retired Russian Army Lieutenant-Colonel Oleg Pulatov.  Kovler refused to answer.

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